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April 19, 2006

More on sentencing of former Gov Ryan

This AP story includes some predictions and explores issues for the sentencing of former Illinois Gov George Ryan following his conviction earlier this week on racketeering, fraud and other charges. Here are highlights:

Prosecutors declined to say what sentence they might ask for, saying they needed time to study the federal sentencing guidelines, which the U.S. Supreme Court ruled last year are advisory rather than mandatory. Assistant U.S. Attorney Patrick M. Collins referred reporters to the 6-1/2 years now being served by Ryan's one-time top aide Scott Fawell as an example of a racketeering sentence in a related political case but stressed that prosecutors do not yet know if something similar would be appropriate for the former governor. "I would think that (6 1/2 years) would be the lower limit," Allen said. "After all, Ryan is more responsible for this than Fawell is."...

Several attorneys said the defense is likely to raise Ryan's age and any possible health ailments at sentencing, which could be delayed by post-trial motions and sentencing issues, along with testimonials from community leaders and death penalty activists.

Defense attorney William F. Dow III... believes high-profile defendants often receive tougher sentences. "Someone like a governor who has inevitably done a number of good things might not have them weigh as heavily in his or her favor because the sentencing judge might not want to look like a pushover," he said. "Whereas a man on the street who had coached Little League, worked at church suppers, taken care of the elderly ... those things tend to mean a lot more," Dow said.

Still, Dow said if he were representing Ryan, he would emphasize his role as one of the nation's most outspoken critics of the death penalty. "I'd say, 'Look at the fresh perspective he brought to the death penalty. Look at the healthy debate that all flowed from this man ... Look at the person in front of you,'" Dow said. "'Look at what they claim he did and what else (good) he has done. Weigh that all in the mix for a 72-year-old man.'"

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So now stimulating debate is a mitigating circumstance? George Wallace's stand in the schoolhouse door stimulated debate. If he had subsequently been convicted of an offense, would that have been mitigating?

The claim that Ryan's mass commutation should weigh in the sentencing process illustrates the danger of too much discretion in sentencing. Defense attorney Dow obviously thinks this was a very good action and should count strongly in his favor. A great many other people vehemently disagree and believe it was an abuse of power and a travesty of justice.

Should the same act count as strong mitigation or strong aggravation depending on the which camp the judge picked at random happens to belong to? That is not justice; that is a lottery.

We see this all the time in capital cases, where the Supreme Court amended the Eighth Amendment to require that juries be allowed to consider in mitigation anything the defendant throws against the wall. Many jurisdictions, to correct the imbalance that would otherwise result, allow similar breadth in aggravation.

In the case of Steven Oken, an exceptionally brutal serial rapist/murderer, the defense claimed that his sexual sadism was a factor in mitigation, rather than aggravation as people of sense would consider it. At least one juror actually bought that, although he was sentenced to death anyway and eventually executed.

Society as a whole should decide what is aggravating and what is mitigating, not individual judges or jurors.